United States District Court, N.D. Iowa, Western Division
ORDER ON PRO SE FILING
DONALD E. O'BRIEN, Senior District Judge.
Before the Court is Defendant's pro se "Motion for Leave to File Notice of Appeal Out of Time and to Appoint Counsel." Docket No. 672. The Defendant, Mr. Hays, is currently serving a 120 month sentence for charges related to the manufacture of methamphetamine. Mr. Hays plead guilty pursuant to a plea agreement, and this Court sentenced him on January 2, 2011. See Docket No's. 465 and 619. Mr. Hays did not appeal his sentence.
I. DIRECT APPEAL
In his current Motion, Mr. Hays states that he believed his attorney was pursuing an appeal of his case. Mr. Hays states that when he found out his attorney was not pursuing an appeal, he filed the present pro se Motion. In his pro se Motion, he asks the Court to allow him to appeal the judgment against him.
The 8th Circuit Court of appeals has stated that under Federal Rule of Appellate Procedure 4(b), the timely filing of a notice of appeal is mandatory. United States v. Anna , 843 F.2d 1146, 1147 (8th Cir. 1988). The 8th Circuit Court of Appeals previously stated that in situations where a notice of appeal was not timely taken, the Court lacked jurisdiction to consider it. However, the 8th Circuit recently stated that:
[u]nlike Federal Rule of Appellate Procedure 4(a), Rule 4(b) is not grounded in statute and is set forth only in a court-prescribed rule of appellate procedure. Court-prescribed rules of practice and procedure, as opposed to statutory time limits, "do not create or withdraw federal jurisdiction." Kontrick v. Ryan , 540 U.S. 443, 453 (2004) (quotation and citation omitted). Rule 4(b) is thus a claim-processing rule, like the rules at issue in Kontrick and Eberhart v. United States , 546 U.S. 12 (2005) (per curiam). In accordance with all other circuits that have considered the issue, we hold that Rule 4(b) is not jurisdictional.
United States v. Watson , 623 F.3d 542, 545-46 (8th Cir. 2010). Accordingly, the Court has jurisdiction to consider Mr. Hays' late notice of appeal.
The procedure for filing a notice of appeal in a criminal case is governed by Federal Rule of Appellate Procedure 4(b), which states in pertinent part:
(1) Time for Filing a Notice of Appeal
(A) In a criminal case, a defendant's notice of appeal must be filed in the district court within 10 days after the later of:
(i) the entry of either the judgment or the order being appealed; or
(ii) the filing of the government's notice of appeal.
(B) When the government is entitled to appeal, its notice of appeal must be filed in the district court ...